replevin, directed to the sheriff of the county where the distress was taken. Generally, writs directed to the sheriff gave him a ministerial power only; but the writ of replevin was in the nature of a justicies, not returnable, and gave the sheriff a judicial authority to determine the matter in question between the parties. Thus distinguished from other writs, it was called festinum remedium, a speedy remedy; but, notwithstanding the advantage accruing to the subject from the circumstances of its being a justicial writ, it was frequently attended with so much delay as to require the interposition of the legislature. This delay arose from several causes: 1. From the necessity of an application to Chancery, when the distress was taken in a distant part of the kingdom.

To obviate this inconvenience, it is provided by stat. 52 H. 3. (commonly called the statute of Marlebridge) c. 21. that if the beasts (3) of any person are taken and unjustly detained, the sheriff, after complaint made to him, may deliver them without the hindrance or refusal of the person who shall have taken the beasts.

To make this remedy more effectual, and to render the delivery of distresses more expeditious, it is enacted by stat. 1 & 2 Ph. & Ma. c. 12. s. 3. that " Every sheriff of shires, not being cities, or towns made shires, shall, at his first county day, or within two months next after he has received his patent of office, appoint and proclaim, in the shire town, four deputies at the least, dwelling not above twelve miles one from the other, who shall have authority, in the sheriff's name to make replevins, and delivery of distresses, in such manner and form as the sheriffs may and ought to do.

By force of the statute of Marlebridged (52 H. 3. c. 21.) the sheriff may hold plea in replevin by plaint of any value, and this plaint may be taken out of the county court, and replevin made immediately (4). But it is incumbent on

d 2 Iust. 139.

e Id.

f 1 Inst. 145. b. 2 Inst. 139.

(3) The word in the statute is "averia," "beasts," but it is usual for the sheriff to hold plea of replevin by plaint of other goods and chattels as well as cattle.

(4) This position, which is to be found in 2 Inst. 139. is not warranted by 21 Edw. 4. 66. there referred to. But it is said in Broke, Repl. pl. 46. to be the best opinion. The reason assigned for it by Sir Edw. Coke is, " that it would militate against the

the sheriff to enter the plaint at the next county court, in order that it may appear on the rolls of the court. This statute does not extend to hundred courts. The hundred court, which derives its authority from the county courts, cannot prescribe to grant replevins by plaint by its steward out of court; for, at common law, the sheriff could only replevy by writ in his county court.

The proceeding by replevin by plaint under the statute has superseded the replevin by writ. The observations, therefore, made in this chapter, with respect to the method of prosecuting replevin, must be understood with reference to the replevin by plaint, except where the proceeding by writ is expressly mentioned.

2. Another cause of delay at common law proceeded from the sheriff's not being able to enter a liberty without a non omittas, where the distress was taken and impounded within any liberty which had return of writs, and the bailiff of such liberty did not pay any regard to the warrant of the sheriff. The statute of Marlebridge has removed the necessity of suing out the non omittas, but still the sheriff must make a warrant to the bailiff of the liberty before he

can enter.

3. The same cause of delay as that last-mentioned was experienced in cases where the distress, though not taken within a liberty, yet was impounded within it. By force of the statute of Marlebridge, the sheriff may in this case enter the liberty immediately, even without previously issuing a warrant.

III. Of the Duty of the Sheriff in the Execution of the Replevin-Of the Pledges-Bond from the Party replevying-Sureties under the Stat.

11 G. 2. c. 19. s. 23.

Ar the commencement of a suit, it was the duty of the sheriff at the common law, in all actions, to take from the

g Hallet v. Birt, Ld. Raym. 218. Carth. 382. S. C.

scope of the statute, that the owner of the beasts should be deprived of the use of them, until the day on which the county court is holden." The same doctrine is laid down in 1 Inst. 145. b.

plaintiff pledges for the prosecution of his suit. This duty was the same in replevin; but as these pledges were only answerable for the amerciament to the king, pro falso clamore, if the plaintiff did not prevail in the suit, they were found insufficient for the security of the defendant in replevin, inasmuch as if the party distrained upon, either sold or eloigned the distress after the replevy, the defendant was wholly prevented from reaping any advantage from an award of a return. To remedy this mischief the stat. Westm. 2. (13 Ed. 1.) c. 2. requires the sheriff, before he makes deliverance of the distress, to take from the plaintiff not only pledges for the prosecution of the suit, but also for the return of the beasts, if a return be awarded. And if the sheriff take pledges in any other manner, he is to answer for the price of the cattle to the distrainors; and if the bailiff has not wherewith to make restitution, it is to be made by his superior.

The course pursued by sheriffs, or other officers making replevins, in carrying into effect the provisions of this statute, does not appear to have been uniform. Two different methods have been adopted by them for the protection of the defendant. The first method has been to take a bond from the pledges conditioned for the appearance of the party replevying at the next county court, for his prosecuting his suit with effect, and making return of the distress, if return should be adjudged. In taking this security, the sheriff has been considered as pursuing the directions of the statute; for the word pledges has been holden to be synonimous with sureties.

The other method has been to take a bond from the party replevying (5); the condition of which is similar to the former, viz. that the obligor will appear at the next county court, and then and there prosecute his suit with effect, and also that he will make return of the beasts, if return thereof be adjudged by law (6).

i Dalton's Shff. 439. k Ld. Raym. 278. Lutw. 687. Dalton's Shff. 438.

(5) I have not been able to discover the origin or first introduction of these securities, and, consequently, I cannot ascertain which is the most ancient. The usage has been not to take both securities at the same time, but the sheriff has exercised his discretion in taking either one or the other, as seemed most convenient. The bond from the party replevying has, I believe, been most generally adopted.

(6)" In all replevin bonds there are several independent conditions; one to prosecute, another to return the goods replevied,

Although the statute of Westm. 2d. c. 2. is entirely silent as to a bond from the party replevying, yet it has been decided that bonds of this kind are lawful', and if the condition be not performed, an action may be brought on them.

It does not appear that the sum in which these securities, viz. the bond from the pledges, or the bond from the party replevying, should be taken, has ever been ascertained. To provide, therefore, a more effectual security for defendants, by fixing the responsibility of the sureties, and to prevent vexatious replevins in cases of distress for rent arrear, it is enacted by stat. 11 G. 2. c. 19. s. 23. "that sheriffs, and other officers having authority to grant replevins, shall (7), in every replevin of distress for rent, before any deliverance of the distress, take in their own names from the plaintiff and two responsible persons, as sureties, a bond in double the value of the goods, conditioned for prosecuting the suit with effect, and without delay, and for duly returning the distress in case a return shall be awarded." The statute then proceeds to authorise the sheriff or other officer to assign such bond to the avowant, or person making cognisance, who may maintain an action upon it in the superior courts", in the event of its being forfeited. In this action, if the declaration state that the plaintiff, as bailiff of one J. S. distrained, &c. it is sufficient, without stating that the plaintiff, at the time of the assignment of the bond, was either avowant or person making cognisance in the suit in replevin".

In Chapman v. Butcher, Carth. 248. the plaintiff in replevin had given a bond to the bailiffs of the borough of New Windsor, conditioned to prosecute his suit with effect in the court of record of that borough, and to make return, if return should be adjudged by law. A replevin was

1 Blackett v. Crissop, 1 Ld. Raym. m Dias v. Freeman, 5 T. R. 195. n Ib.

278.

and a third to indemnify the sheriff; and a breach may be assigned upon any of these distinct conditions." Per Lee C. J. delivering the opinion of the court in Morgan v. Griffith, M. 14 G. 2. B. R. 7 Mod. 380. Leach's ed.

(7) If the sheriff or other officer neglect to take a bond, according to the directions of this statute, the courts will not grant an attachment against him, such negligence not being an abuse of any process of the courts. Twells v. Colville, Willes, 375. R. v. Lewis, 2 T. R. 617.

brought in the borough court, and judgment given for the defendant, which was afterwards reversed in the Court of King's Bench, on error, and a new judgment was given that the plaint should abate, and that the defendant should have a return. An action was brought on the bond, and it was holden a lawful bond, and the court said, that it was the common course to take such bonds. With respect to the condition, it was determined, that it was not confined to a prosecution in the court of Windsor, but extended to the prosecution of a writ of error in the King's Bench, for that was part of the suit commenced below; and by the words, "if a return should be adjudged by law," the condition was not confined to the judgment of any particular court (8), for which reasons the court gave judgment for the bailiffs, the obligees.

So where the condition of the replevin bond was to appear in the county court, and then and there to prosecute with effect; it was holden, that the words then and there related to so much of the prosecution as should be in the county court, but that they did not restrain it, and that the bond was forfeited, the plaintiff having been nonsuited in the superior court, to which the cause had been removed.

Plaintiff in replevin having given a bond to prosecute his suit with effect, levied a plaint against the defendant, who obtained an injunction to stay proceedings until a certain day, on which the plaintiff in replevin died; it was adjudged, that the plaintiff had prosecuted his suit with effect, there not having been either a nonsuit or a verdict against him; and Holt Č. J. compared it to the case of a recognisance on a writ of error, which was to prosecute with effect; there, if the plaintiff was not nonsuit, nor the judgment affirmed, the recognisance was not forfeited.

In an action brought by the assignee of a replevin bond,

o Vaughan v. Norris, Ca. Temp. q Barker v. Horton, C. B. 17 Geo. 2. Hardw. 137. Willes, 460.

p D. of Ormond v. Bierly, Carth. 519.

and 12 Mod. 380.

(8) "To prosecute with effect, the plaintiff must not only proceed to a decision of the suit, but must have success in it, or he does nothing; and it is not a completion of the condition to have levied a plaint in the county court; for the words extend to all the proceedings, from the original to the conclusion of the action, as well in the court below as in the superior court, by re. fa. lo. which is the case in Carth. 249." Per Lee C. J. delivering the opinion of the court in Morgan v. Griffith, 7 Mod. 380. Leach's ed.